MILLAR & JOHNSTON

[2015] FCCA 543

FEDERAL CIRCUIT COURT OF AUSTRALIA

MILLAR & JOHNSTON [2015] FCCA 543

Catchwords:
FAMILY LAW – Children – childbirth maintenance – childbirth maintenance period – maintenance for the mother – proper contribution by the father – father’s capacity to pay.

Legislation:

Family Law Act 1975, ss.4(1), 67B, 67C, 67D

Abrahams & Simm [2014] FCCA 67

Applicant: MS MILLAR

Respondent: MR JOHNSTON

File Number: BRC 2211 of 2014

Judgment of: Judge Demack

Hearing date: 6 March 2015

Date of Last Submission: 6 March 2015

Delivered at: Brisbane

Delivered on: 13 March 2015

REPRESENTATION

Counsel for the Applicant: Mr Blond

Solicitors for the Applicant: Okamoto Lawyers

Counsel for the Respondent: Ms Lyons

Solicitors for the Respondent: Family Legal

ORDERS

1. That pursuant to Section 67B of the Family Law Act 1975, the father is to pay the mother the fixed sum of six hundred and twenty-five dollars and ninety cents ($625.90) by no later than 13 September 2015 and thereafter interest shall accrue at the applicable Family Law rate.

2. That there be no Order as to costs.

3. That all outstanding applications be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Millar & Johnston is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 2211 of 2014

MS MILLAR

Applicant

And

MR JOHNSTON

Respondent

REASONS FOR JUDGMENT

Introduction

1. Sometime in the second half of 2011, the parties commenced a relationship.  They started living together in (omitted) 2012 but separated a couple of months later.  A month or two after that time, they had a sexual relationship over a couple of days.  Ms Millar became pregnant at that time.  X was born on (omitted) 2013.

2. The mother makes a claim pursuant to section 67B of the Family Law Act 1975 (“the Act”) which provides for a father to be liable to make a proper contribution towards the maintenance of the mother for the childbirth maintenance period and the mother’s reasonable medical expenses in relation to the pregnancy and birth.

3. The father opposes the order being made on two bases.  Firstly, that he contributed to the mother’s maintenance voluntarily while she was pregnant and secondly that he is not in a financial position to pay any more money, as he was in receipt of government benefits during the time the matter was before the Court.

4. The trial with respect to the parenting orders and this issue were heard together.  The parenting orders became the subject of a consent agreement, for the most part, after the father had been cross-examined completely and the mother’s cross examination had barely commenced.  The balance of the parenting orders were made by me after hearing submissions on those issues. 

5. Submissions were made then with respect to this application for the maintenance of the mother for the childbirth period.

Statutory Provisions

1. Section 67B is found in Subdivision B of Part VII of the Act, Division 8– Other Matters Relating to Children.  It relevantly provides:

   The father of a child who is not married to the child's mother is, subject to this Division, liable to make a proper contribution towards:

   (a) the maintenance of the mother for the childbirth maintenance period in relation to the birth of the child; and

   (b) the mother's reasonable medical expenses in relation to the pregnancy and birth; …

2. Childbirth maintenance period is defined in Section 4 of the Act thus:

   "”childbirth maintenance period", in relation to the birth of a child, means the period that begins on the day mentioned in paragraph (a) or (b) and ends 3 months after the child's birth:

   (a) if the mother:

   (i) works in paid employment; and

   (ii) is advised by a medical practitioner to stop working for medical reasons related to her pregnancy; and

   (iii) stops working after being so advised and more than 2 months before the child is due to be born;

   the period begins on the day on which she stops working; or

   (b) in any other case--the period begins on the day that is 2 months before the child is due to be born.

3. In determining the contribution that should be made by the father of the child, section 67C requires the court to only take the following matters into account:

   (a) the income, earning capacity, property and financial resources of the mother and the father of the child;

   (b) commitments of each of those persons that are necessary to enable the person to support:

   (i) himself or herself; or

   (ii) any other child or another person that the person has a duty to maintain;

   (c) any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.

   (2) In taking into account the income, earning capacity, property and financial resources of a person, the court must have regard to the capacity of the person to earn and derive income, including any assets of, under the control of or held for the benefit of the person that do not produce, but are capable of producing, income.

   (3) In taking into account the income, earning capacity, property and financial resources of the mother, the court must disregard any entitlement of the mother to an income tested pension, allowance or benefit.

   (4) Subsections (2) and (3) do not limit the matters to which the court may have regard in taking into account matters referred to in subsection (1).

4. Section 67D provides that the court may make such order as it thinks proper and sets out the kinds of styles of orders the court may make:

   (a) order payment of a lump sum, whether in one amount or by instalments;

   (b) order payment of a weekly, monthly or other periodic amount;

   (c) order that payment of an amount ordered to be paid be wholly or partly secured as the court specifies;

   (d) order that any necessary instrument be executed, and that such documents of title be produced and such other things be done, as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;

   (e) order that payment be made to a specified person or public authority or into court;

   (f) make a permanent order, an order pending the disposal of proceedings, an order for a fixed period or an order until further order;

   (g) make an order imposing terms and conditions;

   (h) make an order by consent;

   (i) make any other order (whether or not of the same nature as those referred to in paragraphs (a) to (h)) that it considers appropriate;

   (j) make an order under this Subdivision at any time (whether before or after the birth of the relevant child).

5. There are very few published decisions by the Courts which address these parts of the Act.

6. Counsel for both the mother and the father took me to Abrahams & Simm, a decision of Judge Neville [2014] FCCA 67. At paragraph 34, his Honour refers to Harper & Pint [2011] FamCA 771, and MJ & JBD & Anor [2006] FamCA 419. His Honour uses the shorthand form for this style of application as “child birth expenses” when referring to both of those decisions.

7. It seems to me that I, firstly, need to assess the dates of the child maintenance period.  There are two ways of determining when it commences.  Either it is when the mother stops work on medical advice, or 2 months before the due date.  Either way, it ends three months after the birth of the child. 

8. Within that given time frame, as found by me, I would next need to determine the quantum that meets the definition of, firstly, the maintenance of the mother for that period and, secondly, the mother’s reasonable medical experience expenses in relation to the pregnancy and birth.

9. It seems to me I then need to determine the quantum of a proper contribution by the father. Section 67C requires that I must only take the matters therein listed into account. I am therein required to consider:

   a)the income earning capacity, property and financial resources of both of the parents, along with

   b)their necessary commitments for supporting themselves and any other child or other person; and

   c)to consider any special circumstances which if they were not taken into account would result in injustice or undue hardship to any person. 

   I am not to take account of any entitlement of the mother to any income-tested pension allowance or benefit.

10. If I am satisfied that the father is in a position to make a contribution, I then need to turn my mind to what contribution would be proper.  I note that Judge Neville formed the view in Abrahams & Simm that, as a general proposition, a half share would be considered proper.  

11. And if then I am satisfied that an order should be made, I should turn my mind to the styles of order available in section 67D.

The child maintenance period

1. The mother says at paragraph 42 of her affidavit filed on 12 February 2015 that on 7 December 2012 she was advised by her doctor that she should cease employment in preparation for childbirth because she was experiencing complications arising from damage to her sciatic nerve.  She says that she has annexed a document from her medical practitioner in support of that.  The document which is, in fact, annexed, does not refer to that issue.  It goes to information about vaccinations for whooping cough.  A document annexed at NAM/D is from the same doctor, but is dated three months earlier on 17 September 2012, and says that the expectant mother should keep away from stressful situations and conflict, but makes no comment about her needing to cease work.  So that document is not on point either.

2. In those circumstances, where there is no evidence that the mother ceased work at any earlier stage on medical advice, the mother does not press for the childbirth maintenance period to commence earlier than the two months that the Act otherwise provides.

3. The childbirth maintenance period will be from two months before the child’s birth on (omitted) 2013, that is, from mid-January 2013, and will conclude three months later on 13 June 2013.  The childbirth maintenance period will therefore be for a period of five months. 

4. The mother’s evidence makes reference to ‘weekly expenses’.  I find that five months is the equivalent of 22 weeks (52÷12×5 = 21.66 recurring, rounded up to 22).

Amount attributable to the maintenance of the mother and the mother’s reasonable medical expenses

1. The maintenance of the mother is limited to the period of time which has been defined above.  The mother’s reasonable medical expenses in relation to the pregnancy and birth plainly go for a period of time which includes the length of the pregnancy and the birth itself.

2. It should be noted that the maintenance of the mother of the child maintenance period refers to the maintenance of herself and not child maintenance.  The Family Law Act 1975 otherwise relevantly provides for child maintenance in limited circumstances, and there is otherwise the suite of legislation which provides for the assessment and collection of child support and the establishment of the child support agency.  This part of the Family Law Act 1975 which governs the maintenance of the mother during the childbirth maintenance period and the mother’s reasonable medical expenses should not be confused with child support.  It is only the mother’s maintenance and the mother’s medical expenses which are being considered.

3. The mother sets out[1] the amounts that she is claiming for a period from mid December 2012 to 13 June 2013.  The first point that should be made is that the claims are for a period which exceeds the finding by me of the ‘childbirth maintenance period’.  Wherein she has sought monies for a period of 24 weeks, it should be noted I have found the timeframe to be 22 weeks. 

   [1] from paragraph 43 of her affidavit filed on 12^th February 2015.

4. I set out now what the mother has claimed:

   Outlays for Births/Pregnancy

   Clothing $850

   Nappies $630 (5 boxes @ $30 per box plus 1 box per fortnight at approximately $30 per box)

   Wipes $300 (1 box per fortnight @ approximately $20 per box)

   Change Table $50

   Bassinet $99

   Bassinet Mattress $20

   Car Seat $199

   Rocking Chair $50

   Baby Bath $25

   Feeding Bottles $40

   Powder $10

   Nappy Cream $20

   Towels $20

   Face Washers $10

   Baby Bath Soap, moisturiser, baby oil, baby shampoo $30

   Digital Thermometer $99

   Maternity Clothing $150

   Blankets & Bunny Rugs $70

   Sheep Skin Rug $99

   Pre Natal Vital $65

   Anti Natal Vitamins $65

   Breast Pump $90

   Bottle Steriliser $25

   Formula $340 (1 tine per fortnight @ approximately $20 per tin)

   Total Outlays $3,356

   Living Costs During the child birth period

   Rent $2,400 ($100 per week for 24 weeks)

   Food $2,400 ($100 per week for 24 weeks)

   Mobile Telephone $720 ($30 per week for 24 weeks)

   Internet $240 ($10 per week for 24 weeks)

   Electricity $222.48 ($9.72 per week for 24 weeks)

   Petrol $1,200 ($50 per week for 24 weeks)

   Entertainment $480 ($20 per week for 24 weeks)

   Car Registration $472.32 ($19.68 per week for 24 weeks)

   Car Insurance $300 ($12.50 per week for 24 weeks)

   Clothing $480 ($20 per week for 24 weeks)

   Total Living Costs $8,914

   Grand Total $12,270

   44.    I am claiming one half of the above grand total as Mr Johnston’s contribution to reasonable child birth maintenance expenses.

   45.    I am not seeking payment of any medical expenses such as hospital theatre fees and anaesthetist’s fees, because I was able to utilise Medicare rebate for the entire amounts.

5. Under the heading ‘Outlays for birth/pregnancy’, the mother has listed items which are clearly referable to child support rather than her own.  They do not refer to her maintenance during the relevant period.  There are two exceptions to that: prenatal vitamins and antenatal vitamins both at $65.       They are, plainly, for the mother, and not for the baby, as such.  The clothing named at $850 would appear to be for the child as under the next heading (‘living costs during the childbirth period’) the mother refers again to clothing which seems to be consistent with it being for her rather than for the child.  So, save for the vitamins at $130, none of the amounts under the heading ‘Outlays for births/pregnancy’ are for the maintenance of the mother but rather come within the notion of child support.  They are, therefore, not payable pursuant to the application presently before the Court. 

6. The evidence of the mother under the heading ‘living costs during the childbirth period’ was not the subject of any cross examination; it should be acknowledged that cross-examination (up until it was interrupted by me with an invitation for the parents to have some further settlement discussions) had focused upon matters pertaining to the parenting orders rather than this section 67B application.

7. The amounts set out by the mother are all for 24 week periods and would need to be revised to reflect 22 weeks only.  It seems to me that the mother’s modest rent, food, utilities and car expenses are all proper amounts when considering her maintenance.  It also seems reasonable for her to have sought an amount with respect to her clothing during a period of such significant physical change to her own body.  I cannot see any reason why her entertainment expenses would go to her maintenance. 

8. I note that the mother specifically states that she does not make any claim for medical expenses.  In those circumstances, none are allowed.

9. Taking those matters into account (that is, disallowing entertainment only and all other amounts being for a period of 22 weeks) I assess the mother’s living costs during the childbirth period to be at $7,741.80.

10. Adding the vitamins from the earlier heading brings the grand total to $7,871.80.

The father’s income, earning capacity, property and financial resources

1. The father had not filed a financial statement although as the proceedings that were otherwise before me were for parenting and that this application comes within parenting matters and not property matters in the Act, that there was no requirement for him to attend to the filing of a financial statement.

2. The father gave evidence, though, about his income-earning capacity.

3. The father gave evidence that he had been fired from his job when he had to take time off for court purposes and thereafter determined that he would not seek further employment until the litigation had ended. 

4. He gave evidence that he has good work experience and considers that he has good employment prospects.  He would like to have his own company doing work that he is experienced in which relates to (omitted) in (omitted) of some description.  He intends to seek paid employment in the first instance, to get his cash flow started, and later to commence working for himself.

5. He has no assets of any substance and no debts of any note.  He has been living week by week on government benefits. 

6. His evidence though was quite clear that he considers himself to be employable and that he intended upon getting work very quickly following the conclusion of the trial.

7. The trial finished a week ago, on the day that it started with an outcome which provided for the child to be spending regular time with the father in a manner which the father had specifically sought as being capable of being able to be attended to alongside any work commitments he might find himself having.

8. The father then on his own evidence, is in a position to contribute to the mother’s maintenance.  It would seem reasonable to give him time to pay, as he has no present capacity but has the very real capacity in the near future.

9. On my direct request, the father gave instructions as to the length of time it would take him to pay, say, $3,000 – 12 months, he said.

The mother’s income, earning capacity, property and financial resources.  Disregarding any entitlement to an income tested pension, allowance or benefit

1. The mother is the primary carer for the child and works as a (omitted) earning something in the order of $700 per week before tax.  She repartnered when she was pregnant with X and married Mr J in (omitted) 2014.  She did file a financial statement in May 2014.  She has no assets of substance, no superannuation of note, and no liabilities.

The father’s commitments that are necessary to enable him to support himself or any other person

1. The father has not repartnered and he has no other children.  He has supported himself on government benefits during the period of time that he chose to not actively seek employment.

2. A couple of days before trial he secured accommodation in a share situation.  It seems reasonable to form the view that he had done that in a manner which had considered his financial position.

3. The father has been assessed to pay child support at the minimal amount as a result of him being in receipt of government benefits.  It could be anticipated that upon him obtaining employment, the amount of child support that he is assessed to pay, will increase.

The mother’s commitments that are necessary to enable her to support herself or any other person

1. The mother has the primary care of X.  She has been receiving minimal child support from the father for the last 12 months.  The amount that she received before that time is contested, but appears to be at best less than $2,000.

Any special circumstances which if not taken into account would result in injustice or undue hardship

1. The father gave evidence[2] that he had paid the mother money before he was assessed for child support and that he did that after she told him that she was pregnant, and again, after the baby was born.  The father was not challenged in cross-examination about any of this evidence:

   [2] See the father’s affidavit filed on 26 February 2015 paragraphs 10 through 18.

   I paid the Mother over $2,700 by way of cash deposits into her (omitted) Bank account from 16 July 2012 to 18 March 2013.  Annexed and marked with letter “2” is a true copy of Ms Millar’s bank statements from June 2012 to 16 April 2013.

   I further gave the Mother cash in hand as follows:

   $150 on 5 July 2012 at the first ultra sound;

   $210 on or around late July/early August 2012 at the second ultra sound; and

   $250 on or around September/October 2012 at (omitted) shopping centre.

   I made the following deposits into the Mother’s bank account during the child birth maintenance period as follows:

   $150 on 11 February 2013

   $150 on 18 February 2013

   $150 on 25 February 2013

   $150 on 4 March 2013

   $150 on 11 March 2013

   $150 on 18 March 2013

   In total, I have paid the Mother $3,335 from June 2012 to 18 March 2013.

   During this time, the Mother also received Centrelink Newstart/Pension, Australian Government maternity pay and Australian Government Families.

   I refer to my affidavit filed 11 march 2014 at paragraph 20.  I received a letter from the Child Support Agency (“CSA”) dated 24 July 2013 stating that they had accepted my application to pay child support to the Mother for X.

   I then received another letter from the CSA dated 7 August 2013 stating that the Mother requested to stop receiving child support and the CSA has accepted this request from her.

   Please refer to my affidavit filed 11 March 2014 at paragraph 14 to 21 in relation to the Mother’s demands for money since on or about September 2012.

   I note from the Mother’s bank statements that she withdraw cash out of her account immediately after my deposits from venues such as the (omitted) and the (omitted).  The Mother’s bank statements also show that she was employed by (employer omitted) during this time.

1. The bank records were annexed in support of his claim.  He was not challenged in cross-examination about those amounts.

2. His maths, though, is a little wrong.  If he paid $2,700 by direct bank deposits, and a further $610 cash in hand, then the total paid is $3,310 (not $3,335).

3. As the respondent commenced giving money to the expectant mother in July 2012, some of these amounts were paid before the time that I have found to be the childbirth maintenance period – that is, for the two months before X’s birth and the three months afterwards.  However, as there is no lawful obligation for the father of X to support the mother at the earlier times, and yet he paid her money at those times, it seems to me to be unjust to fail to take full account of the entirety of the money that he paid. 

4. I, again, note that the mother does not make a claim for any medical expenses.  The fact that the father references the timing of the payment of some of the money as being at the ultra sounds, does not, it seems to me, in the circumstances of the mother’s evidence, mean that he was contributing to the cost of the ultra sounds.  Rather, I am satisfied, that it was a time when he saw the expectant mother, and, at those times, handed her some cash.

5. With this evidence before me, I find that the respondent father paid the expectant mother the amount of $3,310 for her support, and it would be unjust to not take it into account.  It would plainly create hardship for the father to have to pay that money again under Orders made pursuant to this application.

Conclusion

1. I have found the childbirth maintenance period to be for 22 weeks.  I have found the amount that is claimable to be $7,871.80. 

2. I find it is just for both parents to be liable for making a proper contribution to the expectant mother’s support, and to that end, I find each taking a half share to be the appropriate outcome.

3. The father’s half share would amount to $3,935.90.

4. I found that he has already paid the mother $3,310 for her support.

5. The balance outstanding that remains to be paid is $625.90.

6. The father needs some time to pay.  The evidence before me in the parenting matter included that the father would need to purchase some items for X for his home to be ready for when she soon starts overnights with him.  Plus, he will have just started looking for work, and it might take a short while for his first pay to come through. 

7. Given those factors, I will give him six months to pay the amount.  Thereafter interest shall accrue at the applicable family law rate as it varies from time to time.  The order will require the lump sum being paid by the six month date.  It is a matter for the father should he choose to pay it off earlier through periodic payments.

Costs

1. This matter was dealt with contemporaneously with the parenting matter which predominantly resulted in consent orders after the trial had commenced, and, indeed, the father’s case was (as good as) closed.  The father was more successful than the mother in the parenting trial.

2. In this part of the mother’s case, she has been a little successful, in that the father sought that her application be dismissed.  I did not dismiss the mother’s case, but she did ask for money for items which did not come within the ambit of the application, and she did fail to take into account the money that the father had paid to her while she was pregnant.

3. In the circumstances, there will be no order as to costs.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Demack

Date:  13 March 2015